Testing for Legal Research Skills on the Bar Exam: Are the Bar Examiners Ready?

An ever growing amount of attention is being given to the idea of testing for legal research skills on bar exams, and perhaps this is finally an idea whose time has come. This proposal has been kicked around by law librarians for a number of years. Barbara Bintliff raised it as an issue during her AALL presidency at the turn-of-the-century, in 2001, and the late Roy Mersky claimed to have been pushing for it long before then. Following Barbara’s lead, Claire Germain got it off the ground several years later when she assumed the AALL presidency in 2005, and appointed a Special Committee on Fostering Legal Research as a Subject Specialty, which I chaired. This committee helped advance the idea further by working directly with the National Conference of Bar Examiners (NCBE). The NCBE’s Executive Director, Erica Moeser, enthusiastically arranged a summit at NCBE headquarters to discuss the feasibility of testing for research skills through one of the tests administered by the NCBE. A half dozen law library directors attended this session, including Steve Barkan who followed up with a fuller description of the proposal in his article appearing in the Law Library Journal. See Steven M. Barkan, Should Legal Research Be Included on the Bar Exam? An Exploration of the Question, 99 Law Library Journal 403 (2007). A subsequent article, co-authored with by Steve with Erica Moeser and others, will soon be published in Legal Reference Services Quarterly. See Steven M. Barkan, Susan M. Case, Michael Kane, and Erica Moeser, Testing for Research Competency on the Bar Exam: Next Steps, forthcoming in Legal Reference Services Quarterly (2009). Also, Erica will be one of the panelists speaking at this summer’s AALL at a session entitled “Legal Research Questions on the Bar Exam: Preparing Our Students.”

In late April, I had an opportunity to address the National Conference of Bar Examiners at its annual meeting, in Baltimore, and was able to gage first hand how receptive the state bar examiners are to the idea of testing for research skills. I was given a prime slot at this meeting, appearing as the last speaker of the first plenary panel during the opening session. Our panel was addressing the topic of “What Every New Lawyer Should Know.” As luck would have it, each of speaker set the stage for my final punch by making my point in a less direct manner. For example, the first speaker stressed that new lawyers must be able to write clearly and succinctly. Of course we all know that lack of clear and succinct writing is very often directly related to not being able to accurately research the law. If you don’t know what you are writing about, it’s impossible to write clearly and succinctly. Another panelist spoke more generally about the need for more practical skills training, and again we all know that the most basic of lawyer skills is proficiency at legal research. The penultimate speaker was more direct and clearly stated that legal research was a skill every new lawyer needed to master. This warmed up the audience for my four questions, which I assumed would lead to a resounding call that we begin immediately to devise a set of bar questions testing for legal research skills. While this isn’t how it played out in the end, my sense is that we are well on our way.

I began by asking the audience four questions: (1) How many of you think legal research is an essential skill with which every new lawyer should be proficient? (2) How many of you think most new lawyers are proficient legal researchers? (3) How many of you think there is a direct correlation between what law students study and learn and what is tested on the bar? And lastly, (4) How many of you think legal research is a subject that should be tested on the bar exam? My thought was that the logic of placing these questions in this order would lead the audience to a resounding conclusion that we should all begin working on a mechanism for testing for legal research skills. Unfortunately, this wasn’t the result, but I did leave the conference feeling we are making steady progress in this direction, and thanks to the help of the NCBE leadership we likely will see movement on this issue soon.

The answer to my first question – should all new lawyers should be proficient legal researchers – was answered with a sea of hands speaking yes! Bar examiners are with law librarians on this issue, agreeing legal is an essential skill in which all new lawyers should be demonstrably proficient. However, the response to my next question – whether the new lawyers we are now admitting are generally competent legal researchers resulted in only a small number of hands reaching up. Clearly, most bar examiners don’t have a clue whether the new lawyers they are admitting are competent at performing legal research skills, and with no testing for this admittedly critical lawyerly skill, who could they know otherwise? At least the bar examiners are giving honest answers to these questions.

My third question – how many think there is a direct correlation between what is tested for on the bar and what is taught in the law schools – drew a more enthusiastic raising of hands. Results of the annual U.S. New & World Report ranking of law schools had just been published, so who could think otherwise about this question knowing bar results factor so clearly into these rankings and that deans lose their jobs on the ebb and flow of their law school’s standing in this often criticized but heavily followed publication.

I was a little disappointed by the response to my last question but key question about how many thought legal research should be something tested for on the bar exam. Only a smattering of hands were raised to answer this question in the affirmative. But as a told the audience, I wasn’t entirely surprised by their skepticism on this issue. Those of us who had spent much more time addressing the issue had at first struggled with the idea of how to test of research skills, and even true believers thought there were obstacles to doing this well. Some initially thought that effective testing of legal research skills would require access to a law library or a select set of research materials, and others thought it would require the use of computers, but as my former Dean Harold Koh is fond of saying, “this is the case of the best being the enemy of the good.” Legal research testing can be adequately tested as a part of the existing Multistate Bar Examination, administered by the NCBE by simply allocating some 10 or so of the current 200 questions to legal research. This would be sufficient to make legal research a proper component of the bar exams using in all of the states and better align these tests with the real skills all new lawyers need to master before being admitted to the practice of law.

My conversation with conference participants over the next two days of the NCBE annual meeting leads me to believe there is growing support for this concept. I queried as many participants as I could botton hole and did not find anyone who disagreed with the idea that we should move forward with developing a method for testing legal research skills on the bar exam.

I imagine we will all be hearing more about testing for legal research skills in the near future and that the NCBE will continue to take a leadership role along with with law librarians on this issue. We should all look forward to hearing Erica Moeser speak on this matter at the coming AALL annual meeting in Washington, D.C. this summer.